Blacklisted building workers hope for day in court after ruling

The Consulting Association, a shadowy organisation that compiled a list of 'troublemakers' — with the help of the security services — for Britain's biggest building companies was closed four years ago. Only now can its 3,200 victims go to court and hope to win

Steve Hedley, an RMT organiser, says he was on the blacklist. Photograph: Antonio Zazueta Olmos for the Observer

Blacklisted building workers hope for day in court after ruling

The Consulting Association, a shadowy organisation that compiled a list of 'troublemakers' — with the help of the security services — for Britain's biggest building companies was closed four years ago. Only now can its 3,200 victims go to court and hope to win

Saturday 3 March 2012 16.02 EST
First published on Saturday 3 March 2012 16.02 EST

At first there was an audible gasp, then there were cheers. It was the moment 30 friends and family members in the public gallery of the central London employment tribunal heard official recognition that information used by corporate giants in the construction industry to blacklist workers over three decades had been supplied by members of the state's security apparatus.

It may come too late for many of the families devastated by the blacklisting of some 3,200 construction workers deemed too leftwing and troublesome for work on building sites. Indeed the following day, Dave Smith, the 46-year-old engineer whose tribunal heard the admission, went on to lose his claim for compensation from one of the firms involved in the blacklisting. As an agency worker, the tribunal decided, he didn't have the right to claim compensation for loss of income, although there was an admission from construction giant Carillion that two of its subsidiaries had "penalised" Smith for being a trade unionist.

But the testimony of David Clancy, investigations manager at the Information Commissioner's Office (ICO), giving evidence in the court, was clear. Clancy told the tribunal he believed that some of the information in the files used to blacklist workers "could only be supplied by the police or the security services".

It was a satisfying moment. Smith is one of a group of 100 workers who are about to embark on a class action against some 39 companies which they claim breached their rights when they blacklisted them. These admissions could be crucial when Hugh Tomlinson QC takes up the case in the high court.

But it was also a disturbing moment for Smith and his friends in the Blacklist Support Group. "If managers on a building site don't like the fact that I am safety rep because it affects their profit and their deadlines, then I understand why they might do it. I disagree with it, I think it is wrong, but I can understand," Smith told the Observer.

"But for the police to be involved is appalling. This is the state linking up with big business basically, and any decent person in a civilised society would think it is appalling.

"This is about human rights. I have not done anything illegal, I am a member of a trade union. I have worked in an attempt to improve health and safety on building sites and yet it appears my employers, the state, security services and the police have been conspiring against me."

It is just the latest twist in a story that begs to be turned into a movie. Four years ago Steve Acheson, a skilled worker, could not get any work. He couldn't understand it, but then heard about a mysterious blacklist preventing certain people, union representatives in the main, from getting jobs.

It was a rumour that had lingered around British building sites for some time. Many people, including Dave Smith, thought and said for many years that it was a myth. But when Acheson took the latest firm to reject him to an industrial tribunal, he found support from a whistleblower, Alan Wainwright, a former manager in the construction industry, who testified that blacklisting did go on.

In written evidence, Wainwright said: "I believe that certain UK construction companies and their mechanical and electrical subsidiaries operate a blacklist procedure to ensure certain electrical operatives do not gain employment on their projects." The tribunal found for Acheson and two colleagues, and they were awarded compensation.

Reading a report of the development in the Guardian the next day was a member of staff of the Information Commissioner's Office. Within a year, the blacklist was no more. The ICO raided a first-floor office in the Worcestershire town of Droitwich. Officials took away the entire contents of a database suspected to contain the blacklist, as well as invoices from companies in the construction industry that were paying Ian Kerr, the 66-year-old keeper of the data.

There they found a database of some 3,200 names, as well as invoices showing that 44 construction firms, including some of the UK's biggest, had used the services of a clandestine organisation called the Consulting Association. The list of subscribers was packed with household names, including Sir Robert McAlpine, Balfour Beatty, Costain and Skanska Construction, although there have been no findings against them.

The information held on the individuals was kept in card files and ranged from personal descriptions of the people blacklisted, their families and relationships. Then there were undercover observations of union meetings, left-wing newspaper cuttings and, of course, a smattering of pieces of intelligence that are now believed to have been supplied from either police or MI5 records.

But Kerr was fined only £5,000 and while the Consulting Association was closed, only 14 of Kerr's clients were given enforcement notices, demanding they comply with the law. In the three years since the blacklist was first revealed, only three people are understood to have successfully won a claim at a full employment tribunal.

The vast majority of those who have attempted to gain redress through the courts have failed. According to campaigners, one reason why legal victories have been so rare is that in some cases lawyers took too long to file court papers and the actions were ruled out of time. Also, some claims were made citing a breach of employment laws that did not exist at the time. As the failed cases mounted up, lawyers began to see fewer reasons for advising clients to go forward.

Even those that did make it to a full hearing found employment laws didn't offer complete protection. Electrician Steve Kelly was one of the few to have won compensation, but says it is scant reward. "I got £2,400 compensation for 10 years of blacklisting," he said. "I tried to get on the Olympic project and was told 'no way, he's the biggest troublemaker in London'."

Indeed only 600 of the 3,200 names on the blacklist have asked the ICO for a copy of their files. The ICO says it has been unable to pursue the police officers or security services over the confidential information that found its way into Kerr's database. Certainly, neither the card files nor Kerr disclosed who was providing the Consulting Association with the intelligence. "He had very little to say on the matter," Clancy admitted.

But all this could now change. The events in the central London employment tribunal on 17 January could be the key for the blacklist victims to get their justice. "My lawyers were thrilled by Carillion's admission about blacklisting, so we shall have to wait and see what happens next," Smith said. It seems that he and his 30 friends from the central London employment tribunal have got their eye on a bigger setting now. "It's the high court next," Smith said. He can't wait to hear the cheers.